Kamande v Judicial Service Commission (Petition 50 of 2020) [2021] KEELRC 1537 (KLR)
The bottom line
#Kenya's Employment Court reinstated a Judiciary staff member wrongly dismissed, ruling that Employment Act protections apply fully to Judicial Service Commission discipline.
What this practically means
#Executive summary
#Key legal issues
#Applicable statutory regime governing discipline of Judiciary staff
The Petitioner's contract was governed cumulatively by the Employment Act, the Judicial Service Act and the Fair Administrative Action Act; no one Act applied to the exclusion of the others.
Judiciary staff are not among the categories excluded from the Employment Act under Section 3, and no Cabinet Secretary order excluded them. The Employment Act sets minimum standards against which the Judicial Service Act regime must be measured. The Fair Administrative Action Act has a wide scope covering state agencies exercising quasi-judicial functions and was expressly held in Mbalu Mutava to apply to such bodies.
Mode of initiating the dispute - Petition versus Claim
The Petition was procedurally sound; litigants may choose either a Petition or a Statement of Claim before the E&LRC.
Rule 7 of the E&LRC Procedure Rules is permissive and allows enforcement of constitutional rights even in a Statement of Claim. The Respondent identified no rule rendering the Petition untenable, and judicial review underpinning has shifted to Article 22(3) of the Constitution.
Procedural fairness of the disciplinary process
The process was procedurally unfair: there was no internal investigation or investigation report, and the hearing was fatally flawed by the Respondent's failure to procure the evidence of the star witness, Erick Okeyo.
The 3rd Schedule to the Judicial Service Act required a committee to investigate before the hearing; none did. Okeyo, the principal complainant whose allegations founded the charges, never gave evidence, swore an affidavit or recorded a statement before the committee, yet the Respondent had power under Article 252(3)(b) of the Constitution to summons him. Closing proceedings on the basis that he had gone underground was improper.
Substantive fairness - whether the charges were established
Neither charge was established; there was no valid reason justifying termination under Sections 43 and 45 of the Employment Act and Rule 25(10) and (11) of the 3rd Schedule.
Without Okeyo's evidence the integrity charge could not be sustained; the Petitioner's contact with Bedrock was routine given his supervisory role over existing service providers. The conflict-of-interest charge failed because the Respondent itself placed the Petitioner in the perceived conflict by appointing him to the evaluation committee.
Remedies - reinstatement, re-engagement and compensation
Proceedings and dismissal set aside; the Petitioner to be reinstated or alternatively re-engaged to an equivalent position without loss of benefits, allowances and salaries; no compensation in addition.
Remitting the matter back would expose the Petitioner to double jeopardy and compound the Article 47 violation, the process having already lasted 23 months against a 6-month policy. Reinstatement with back-pay is an automatic remedy once dismissal is adjudged unlawful, and may not be granted simultaneously with monetary compensation.
Legal principles established
#- The Employment Act applies to Judiciary staff; the Judicial Service Act does not apply to the exclusion of the Employment Act
- The Fair Administrative Action Act applies to the Judicial Service Commission in disciplinary proceedings against staff
- Where applicable written law requires an investigation separate from the disciplinary hearing, investigation must precede the hearing
- A party may not proceed by petition rather than statement of claim only where procedure is permissive; both modes are open before the E&LRC
- Once dismissal of a state or public officer is adjudged unlawful, null and void, reinstatement ought to be automatic and should not be granted simultaneously with monetary compensation
- A constitutional petition is a procedurally sound mode of bringing an employment dispute before the E&LRC
Court orders
#- 1.It is declared that proceedings and determination to dismiss the Petitioner were unfair, unlawful and unconstitutional, and are hereby set aside
- 2.It is declared that proceedings and determination violated Sections 41, 43 and 45 of the Employment Act; Rule 25 the 3rd Schedule, Judicial Service Act; the Fair Administrative Action Act; and Article 47 of the Constitution
- 3.The Respondent shall reinstate the Petitioner to the position of Principal Administrative Officer, Human Resource Directorate, without loss of benefits, allowances and salary
- 4.Alternatively, the Respondent shall re-engage the Petitioner to a position equivalent to Principal Administrative Officer, without loss of benefits, allowances and salary
- 5.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Rule 7 of the E&LRC [Procedure] Rules, 2016, permitting enforcement of constitutional rights (Article 47); Article 172(1)(c) of the Constitution on discipline of Judiciary staff
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamande v Judicial Service Commission (Petition 50 of 2020) [2021] KEELRC 1537 (KLR)", Case Analysis (2021). Petition No 50 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1537/eng@2021-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.